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ciaran_o_riordan writes "The US Supreme Court has finally decided the Bilski case (PDF). We've known that Bilski's patent would get thrown out; that was clear from the open mockery from the judges during last November's hearing. The big question is, since rejecting a particular patent requires providing a general test and explaining why this patent fails that test, how broad will their test be? Will it try to kill the plague of software patents? And is their test designed well enough to stand up to the army of patent lawyers who'll be making a science (and a career) of minimizing and circumventing it? The judges have created a new test, so this will take some reading before any degree of victory can be declared. The important part is pages 5-16 of the PDF, which is the majority opinion. The End Software Patents campaign is already analyzing the decision, and collecting other analyses. Some background is available at Late-comers guide: What is Bilski anyway?"More analysis of the decision is available at Patently-O.

Answer: The apostrophe is used mainly in hand-lettered small business signs to alert the reader than an "S" is coming up at the end of a word, as in: WE DO NOT EXCEPT PERSONAL CHECK'S, or: SUPREME'S THROW OUT BILSKI PATENT. Another important grammar concept to bear in mind when creating hand- lettered small-business signs is that you should put quotation marks around random words for decoration, as in "TRY" OUR HOT DOG'S, or even TRY "OUR" HOT DOG'S.
-- Dave Barry, "Tips for Writer's"

The apostrophe is largely used to show contractions or missing letters. "Supreme" is here an abbreviation for "Supreme court justices". So "Supreme's", though annoying, cannot be said to be grammatically incorrect.

Did you just suggest that "Supreme's" is a contraction of "Supreme court justices"? As in Supreme[ court justice]s? If that's what you mean, I find that preposterous. Contractions are only meaningful when generally accepted. You can't just leave out a few words and call it a contraction.

Or when the sense is plain. Anybody who has any interest in Bilski would understand this one. At least, I did, and IANAL, though I do follow US patent decisions in a general kind of way.

Headlines have always been a bit of a word game intended to get reader attention, and playing with language is part of that. I submit that it's the people above who think they understand the rules and are allowed to mock people who do not follow their prescriptions who

No, I didn't understand it. I came along after the story title was changed, but when I see Supreme's referring to the Supreme Court (or its justices), I don't "understand" it as a contraction, I understand it as a mistake, because it is.

And fine, it's a mistake -- a common mistake at that. But it's not reasonable to claim that it is a valid contraction.

The apostrophe was not there as a contraction. It was there for exactly the reason Dave Barry was making fun of: frequently people insert an apostrophe when they add an S to the end of a word because they're not sure of the rules involved and seem to think it's better to err on the side of the apostrophe.

I think what you've just proven is that a moderate amount of learning is a dangerous thing.

you will find out that even greengrocers' apostrophes are not always wrong: they date from an age when new fruit and vegetables were appearing, and their customer needed to know that there was a difference between potato's and asparagus.

You know, if you cannot tell the difference between potato and asparagus then you might have problems that even an apostrophe cannot solve...

Machine-or-transformation is thrown out as the *exclusive* test, which is what the Federal Circuit was doing. In doing so, the Supreme Court has cleared the way for ongoing patenting of business methods (and software, although not stated directly).

Regardless of where you stand on the matter, this case is a major win for a restrained judiciary that does not legislate from the bench. The statute is VERY clear that the concept of patentable subject matter is extremely broad, to include business methods (and

In practice, it's not clear how much they've cleared the way for business-method patents. Scalia signed the separate Breyer concurrence, which emphasized that the machine-or-transformation test is still the main test to be used, and that huge ranges of supposed business-method patents are absurd and clearly impermissible--- the opinion ended with a list of 4 or 5 such absurd business-method patents, like a dating-system one. So it seems five of the justices (Scalia, Stevens, Breyer, Sotomayor, Ginsburg) have a general presumption against business-method patents, and would probably hold that any specific patent that made it to them was not legit.

In practice, it's not clear how much they've cleared the way for business-method patents. Scalia signed the separate Breyer concurrence, which emphasized that the machine-or-transformation test is still the main test to be used, and that huge ranges of supposed business-method patents are absurd and clearly impermissible--- the opinion ended with a list of 4 or 5 such absurd business-method patents, like a dating-system one.

But the ones he listed as "absurd" had to do with dating, and toilets, and other "absurd" subjects... He didn't say why they were absurd. It was mere dicta.

So it seems five of the justices (Scalia, Stevens, Breyer, Sotomayor, Ginsburg) have a general presumption against business-method patents, and would probably hold that any specific patent that made it to them was not legit.

(Scalia also didn't join all of the majority/plurality opinion.)

Four - Stevens is out now, so, going forward, it's 4-4-2 and the question is where Kagan would sit.

I agree it's mere dicta, but I think it's a clue to Scalia's sentiment on the subject: it's not the kind of laundry list you'd get from someone who generally feels business method patents are valuable. At the very least, it's suggestive of someone who feels that business-method patents have gone too far.

I agree it's mere dicta, but I think it's a clue to Scalia's sentiment on the subject: it's not the kind of laundry list you'd get from someone who generally feels business method patents are valuable. At the very least, it's suggestive of someone who feels that business-method patents have gone too far.

I don't know... Take the classic "method of exercising a cat" or "method of swinging on a swing" - shouldn't those have been rejected under 35 USC 102 as already known, or at least under 35 USC 103 as obvious? 35 USC 101 is just the barest gatekeeper - both are clearly "methods" and pass 101. Similarly, the absurd things he listed - toilet reservations, notifications of dating status - are clearly "methods" and should pass 101, but perhaps be invalid as neither new nor nonobvious.

I'd actually prefer that approach--- strengthen review for obviousness instead. But I don't really see anyone on the court advocating for that approach. It's possible that Breyer and Scalia would agree that the patents they list are invalid for reasons other than section 101, but the list comes entirely in a discussion of section 101, and they don't mention 102 or 103 at all, so it seems they're thinking of 101 as the bar as they write that list? If they're thinking of a different section, they surely don't

Obviousness is a trap. As soon as you declare a patent "obvious", patent defenders sneer that "Oh yeah, it's real obvious now that you have the patent in front of you. If it's really so obvious why hadn't it been done before?". And that last challenge moves you from obviousness to novelty, where novelty is so narrowly defined that you have to have an example of something done in exactly the same way using exactly the same term

Basically all I know: It's a business method patent actually, and a vague one at that; everyone hopes it's vague enough that throwing it out means other vague patents, such as (most) software patents get thrown out.

Because the Bilski patent itself is irrelevant, the important thing is the precedent that may or may not be set by the decision (I can't tell, the link that would answer this is Slashdotted already). For those unaware of this, the submitter helpfully included a link at the end explaining what this case is about.

Because I have no idea what the Bilski patent is. I don't care. It's not relevant. That's not what the story is about, nor why anyone cares. The point is that it is a test case for the patentability of business models and, indirectly, of software. The patent itself is not important, the important bit is what the ruling says about patentability in general (which, it turns out, seems to be not much making this something of a non-story).

Second, This is a topic that has come up more then once on Slashdot, it does not need a blurb about what we are talking about every damn time.

Third, this is supposed to be a site catering to those who are at least a little bit capable, you should not need your hand held through everything. If there is something you don't understand, look it up yourself.

I read slashdot every working weekday (and have done since 2001) and I don't remember seeing anything called "Bilski" in recent memory.

And sentences like "X could have major repercussions for Y" where X is an unknown quantity and Y is an article about which one can be reasonably sure someone would know don't tend to work very well when pointed at the scientific market - doubly so when you can't tell when X is a proper noun or not. Observe the following examples:

I read slashdot every working weekday (and have done since 2001) and I don't remember seeing anything called "Bilski" in recent memory.

Wow. Really!? [slashdot.org] I suggest you get into the doctor to have your short-term memory tested. The last article that referenced Bilski in the summary was 3 weeks ago [slashdot.org]. There have been 4 since the beginning of this year. 16 in the last 12 months. 26 since March '08.

WASHINGTON — The Supreme Court on Monday refused to weigh in on whether software, online-shopping techniques and medical diagnostic tests can be patented, saying only that inventors' request for protection of a method of hedging weather-related risk in energy prices cannot be granted.

The high court unanimously agreed with a lower court ruling that threw out Bernard Bilski and Rand Warsaw's patent, a decision many said could endanger patents in an increasingly high-tech world. But the high court said they did not need to make a broad sweeping decision about patents to dispose of Bilski and Warsaw's case.

"The patent application here can be rejected under our precedents on the unpatentability of abstract ideas," Justice Anthony Kennedy wrote for the court. "The court, therefore, need not define further what constitutes a patentable process."

This is a better background than anything else I've found. Tried to submit a general patent for software that determines energy prices against weather. Thrown out for being too abstract.

Let's make a Patent that Patents the system for which Patent Lawyers & Patent Registers Circumvent Common Sense and are awarded Patents. That way anyone who files one of these ridiculous patents are infringing upon my patent. Anyone who defends the patent is also infringing upon my patent.I'll see you in court Bitches. (That is step 6 of my process)

But think of all the poor unemployed lawyers that need a job.Wait a second... I'm starting to see a problem here.Maybe if a company with cash counter-sues me I will sell my patent to my other company, close up shop and screw over that lawyer with the bill. Then open up shop under a new name like Big Patent or BP for short. I hear that name will be available soon.

Corporate Defense through mitigated risk and shell companies. Is there a patent on that yet?

The Software Freedom Law Center has a great response [softwarefreedom.org] up. From SFLC chairman Eben Moglen: "The confusion and uncertainty behind today's ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed."

(I hope they'll be providing a deeper analysis later on; the above came out like ten minutes after the decision, so obviously it's just based on the summary of the decision.)

Is also worth reading. [tieguy.org]
Basically, while this is not a hands down win for opponents of software (or business method) patents, the upholding of the older cases (Flook, Diehr, etc.) could give some guidance on future cases that may help them rule out abstract ideas and algorithms. Villa also talks a bit about how the lower courts may see this and how he thinks they may be handling future patent cases.

Good point, but also remember that legislators didn't explictly allow software patents in the first place either, IIRC. Most of the important decisions along the way were made by what is effectively a regulatory body (the USPTO) or by the courts. Asking the Supreme Court to correct the mistakes of either a regulatory agency or of lower courts is not quite the same as asking it to overrule explicit Congressional direction.

No, the judges said that the "machine or transformation" test that the Federal Circuit used to reject Bilski wasn't the exclusive test, but merely an important tool... And then they left it at that, and didn't specify a new test.

The important parts to take away here are that this decision carefully tiptoed away from software, and did affirm that some business methods are patentable.

They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.

They've basically declined to create a new test. The "majority" opinion, in its strongest parts, which leaned more in favor of business-method patents, only got 4 votes (Scalia didn't join those parts). The main concurring opinion (by Stevens), which leaned more strongly against business-method patents, also only got 4 votes. Scalia joined a separate opinion by Breyer which emphasized the common points between the two opinions, but leaned slightly against business-method patents. It agreed with the majority that the "machine or transformation test" wasn't the sole test, but still thought it was the main useful one. That opinion also ended up with a list of examples of ridiculous business-method patents that are definitely not legit, so it doesn't seem Scalia would actually uphold most specific business-method patents that came across his desk.

Two things to bear in mind... First, this was Steven's last opinion, and Kagan seems to be more pro-software.
Second, as you note, Breyer cited some ridiculous patents, but merely called them "dubious", not "definitely not legit". He also didn't go into the "why", and I'd argue that invalidity in several of those may be based on obviousness, rather than subject matter.

However it should be noted that the decision was unanimous in that entire court agreed that the Bilksi patent should not have been patentable. They disagreed on why and on which parts. Judge Kennedy wrote the opinion but other justices wrote why they disagreed on certain parts or clarified their position as you noted.

While Bilski lost, the Supreme Court did not throw out software or method patents. The Supreme Court actually re-opened the door just a bit after the Federal Circuit had left it cracked.

The actual majority opinion is only 16 pages long, and really doesn't say much. They more or less like the "machine or transformation" test that the Federal Circuit had come up with... wherein a method patent must tie any abstract ideas to a "particular" machine or transformation of matter, such that the abstract idea may be combined with other machines or transformations not protected by the patent. However, the Supreme Court now says that while this test may get the job done most of the time, it is not necessarily the only possible test (and they don't say what the other tests might include.

Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.

Nice headline, but it does not reflect the total picture. This opinion is NOT a victory whatsoever for the anti-software patent crowd.

Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.

While I agree with your other paragraphs, I disagree here for two reasons... Most software claims are not written as Beauregard claims, but as either method or system claims (or both), cause your second clause - that the PTO gives them a wink and a nudge - is incorrect. The PTO most certainly applies the machine-or-transformation test to Beauregard claims, and I've received several application rejections that cite the Fed. Circ's decision in Bilski against them. So, since we still have had to address that test, there's no reason to write a claim as a Beauregard claim when a method or system would work equally well and be arguably broader.

/I am a patent agent; I am not your patent agent; this is not legal advice, etc.

Sorry, I didn't mean to imply that the machine-or-transformation test is not at all applicable to Beauregard claims. However, BPAI rulings and District Court decisions over the past year have been all over the map on it. Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource i

Some view Alappat and Beauregard doctrine as turning a "general-use" computer into a "particular" machine, satisfying that first prong. Others opinions "pierce the veil" so to speak, and consider the particularity of the machine apart from merely having software on it (e.g. Cybersource in California).

Regardless, when you invent software and install it on a general-use computer... in my opinion it's fundamentally disingenuous to say that you have a "particular machine".

What's a "general use computer" as opposed to a "particular machine"? The Fed. Circ. ignored that, and SCOTUS unfortunately never addressed it.

And inventors, and corporations, and consumers. The only people who don't benefit from this system are people who lack the creativity to invent something, but still want to piggyback on others' hard work for free.

So are you claiming the FSF and kin (and me) are only interested in piggybacking on others hard work? Perhaps you think OSS license damage copyright too.

I release a lot of *my* hard work with BSD. I have worked for a engineering company that where getting litigated by a NPE for stuff we came up with quite independently. Where is the reward for *our* hard work. The company went bust when an injunction *was* awarded. Later they (the NPE) took a different company to court and the very patent that made our c

While Bilski lost, the Supreme Court did not throw out software or method patents.

If anything they suggested software and method patents have a place in "the Information Age", saying: "The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals."

What they say in the last sentence is actually false: it would not "create uncertainty" but rather almost certainly rule out patentability. This is the court giving a wink and a nudge to the new slavery: ownership of ways of organizing human beings.

Patents in their up-until-recently form were intended as protection for ways of organizaing brute matter, not living things and not in particular not human beings. Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."

Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.

The good thing about the decision is that it suggests the scope of such tyrannical patents is likely to be viewed as narrow, and the minority concurring decision has much stronger language on the meaning of "process" that leaves the door open to sanity and liberty carrying the day in the end.

Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."

Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.

That's actually what the CAFC was trying to get at in their "machine or transformation" test: if the claimed process was abstract enough that it could be done solely by thinking, then people could be infringing in their mind... and how do you get an injunction to stop people from thinking? So, instead, by requiring that the claim be "tied to a machine", you ensure that it's impossible that someone could infringe just by thinking.

Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act's
text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas.
The Court, therefore, need not define further what constitutes a patentable "process," beyond pointing to the definition of that term provided in 100(b) and looking to the guideposts in Benson, Flook, and Diehr.

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

It looks to me (after only a cursory skimming of the decision and reading the comments on several blogs) like the Justices did not like software or business method patents but did not want to completely get rid of them in one fell swoop. I would also say that in all probability they believe that some of those patents are legitimate but could not think of a clear way to separate those out from those that should be overturned. They did not feel that this case provided the basis for making that distinction and

So... essentially the court accepted a case and then wasted everyone's time doing the USPTO's job, and declared the patent invalid in this specific case because it wasn't patentable material... Something the USPTO should have done in the first place...

No new precedent, no new tests, no new rules... So everything will stay exactly as it is, and the USPTO will continue to approve bogus patents just like this one... Great! I love America!

I read the whole text - the minority opinion really gives a lot of insight into the majority opinion. Here's the basic summary as I read it:

The court rejects "machine or transformation" as a defining test, which is ultimately a test if the patent is concrete. At the same time, they strongly oppose abstract ideas as patentable and it's really awkward to see what's in between those. They give a broad interpretation of process, arguably because "times change" and we're in the "Information Age" despite that the

"Supreme's" is not a contraction. "Supremes" is a popular term for members of the Supreme Court, not a contraction, and the apostrophe is superfluous. BTW, IMB isn't a contraction, either, it's an acronym.

Yes it is, and if you search for that phrase you will see that it is short for Supreme court justices, where the apostrophe stands for court justice. I have seen this contraction before and thought it strange until I had it explained to me. You will find that many newspapers and such use it. For example: https://www.lectlaw.com/files/exp20.htm [lectlaw.com]

Supremes is also used, but I've never been able to figure out what Diana Ross had to do with the Supreme Court.

So, can I continue getting patents by adding "on the internet" to common sense operations?

You misunderstand the point of that phrase. It's a technique called claim differentiation and shows up typically in a dependent claim, the purpose being to expand the independent claim from which it depends. For example, say my independent claim is a new forward error connection scheme that involves receiving packets from a network, processing them using my revolutionary new error correction system and appending some sort of advanced hash to them [note: I personally haven't invented it yet, so please don't criticize me by saying "but error correction and hashes are known". This is just for example], and then transmitting the appended packets over the network. Then, in a dependent claim, I say, "The method of claim 1, wherein the network is the internet." Because the two claims, by definition, cover different things, the addition of the dependent claim means that the networks in the independent claim include the internet, but also include other networks - local networks, private networks, metropolitan area networks, wireless networks, wired networks, token ring networks, etc. It's purely useful in a litigation sense so that someone can't say "well, you were thinking of the internet when you said 'network' so when I do it over my corporate intranet, it's different and I'm not infringing."

How is it a "split 5-4 in favor of business method patents"? Every judge agreed just not on the details. A split 5-4 would mean 5 agreed and 4 disagreed, not a unanimous verdict (9:0) - with or without multiple concurring opinions - which is what was handed down.

" This [, the Information]Age puts the possibil ity of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."